WHAT IS JUDICIAL REVIEW, AND WHAT ARE ITS PURPOSES?
[1.04] Judicial review can be defined as the procedure through which the High Court supervises the public law actions and inactions of public authorities and other bodies that are exercising statutory powers, performing public duties, and/or taking decisions on matters of public interest.[15] A slightly different—though equally valid—definition is that judicial review is the process by which the High Court exercises its supervisory jurisdiction over the public law decisions, acts, failures to act, and other measures of inferior bodies and tribunals that are performing public functions (the High Court itself is not amenable to review[16]).
Although each definition begs the difficult question of how to distinguish â€?public law’ from â€?private law’,[17] they encapsulate the understanding that judicial review is the primary means through which the courts can supervise the exercise of public powers and the performance of public duties. Moreover, the use of the terms â€?matters of public interest’ and â€?public functions’ reflects the fact that judicial review has developed to embrace powers and duties that were previously considered beyond the supervisory jurisdiction of the courts (or at least potentially so). Judicial review in the UK was historically synonymous with the ultra vires doctrine that regarded all public law powers and duties as statutory in origin and as constrained by the intentions of the legislature/language of the statute (see [1.12]).[18] [19] However, while a majority of powers and duties could, and still can, be traced to statute, historical realities (the royal prerogative11 and private monopolies of public resources[20]) and changes in modes of government (privatisation, contracting out, etc[21]) meant that there were various non- statutory powers that were potentially outwith the supervisory jurisdiction of the High Court. The terms â€?matters of public interest’[22] and â€?public functions’[23] (among others) have thus been used by the courts to describe non-statutory decisions that are taken to sound in public law and, for that reason, to be amenable to review.[1.05] Notwithstanding the wide range of decisions and other measures that are now subject to judicial review, the courts often state that their role in review proceedings is not to examine the â€?merits’ of a decision or other measure under challenge, but rather to scrutinise the fairness of the procedure by which it was reached and/or whether the decision is lawful.[24] This emphasis on â€?review, not appeal’ has long been central to the constitutional justification for judicial review and it takes form in judicial approaches to the grounds for review[25] and in the nature of the remedies that are available.[26] For instance, where a court or tribunal is hearing a full appeal in a matter it may reassess all matters of law and fact and substitute its own decision for that of the original decision-maker. This is in sharp contrast to judicial review proceedings, where there has historically been only limited scope for judicial intervention on questions of fact[27] and where the available remedies reflect upon the imperative of judicial self-restraint.[28] Although much ultimately depends upon the context to a dispute (for instance, whether a dispute engages fundamental rights), the courts in review proceedings start from the premise that they should not take decisions in the place of other bodies that the legisÂlature has entrusted with a particular decision-making power (viz, the â€?separation of powers’ doctrine: see [1.03]).[29] In terms of questions of fact—for instance, how much weight should be given to a consideration and for which reason—the courts have thus traditionally stated that these relate more to the merits of the decision and that judicial intervention is permissible only where the corresponding decision is â€?unreasonable’ or where fundamental rights are in issue.[30] The corresponding remedies are likewise conÂsonant with the understanding that courts should not usurp decision-making powers, as the courts cannot, in general, substitute their own findings for those of the original decision-maker[31] but can instead (and among other things) require the decision-maker to retake its decision in the light of the judgment of the court.[32]
[1.06] The corresponding purposes of judicial review are often linked to the imperaÂtives of ensuring efficiency in public decision-making processes and protecting individuals in the face of those processes.
While the â€?efficiency’ and â€?protection’ imperaÂtives need not be regarded as mutually exclusive, they can nevertheless be associated with different rationales for the principle and practice of judicial review. For instance, an emphasis on efficiency in decision-making will be underwritten by an understanding that the public at large benefits when decision-makers who are providing public services and other goods are subject to only minimal judicial invigilation and where the corÂresponding grounds for judicial review are not unduly intrusive. In this model, public decision-makers can thus carry out the business of government more efficiently and effectively as their decisions, once taken, can be interfered with by the courts only within closely and clearly defined parameters. On the other hand, an emphasis on the protection of the individual highlights how the public at large benefits when individuals are able, as a matter of priority, to vindicate their interests in the face of the actions or inactions of public authorities. While this does not mean that individuals can expect their interests automatically to trump those of the wider public, the essential role of judicial review here is to protect the individual by controlling those exercises of public power that impact upon the individual’s interests. In this model, the parameters within which a judicial review challenge can be made to a decision or other measure would therefore be drawn more widely.[1.07] Statements to the effect that the public at large benefits when decisions may be challenged only within very specific parameters can be found in dicta about some of the procedural requirements that govern applications for judicial review. The require- ments—contained in sections 18-25 of the Judicature (Northern Ireland) Act 1978 and RCJ Order 53 (as amended[33])—are intended to ensure heightened degrees of certainty and efficiency in public decision-making by permitting challenges to decisions only where the applicant has, among other things, made the application â€?promptly and in any event within three months’.[34] Although the period of three months can be extended where the court considers that â€?there is good reason’ for doing so[35]—the position is also more complex when EU law is in issue[36]—emphasis has often been put on the point that applications should be made promptly and that they risk being dismissed for delay even if made within the three-month period.[37] The underlying rationale here is simply that the overall process of public decision-making benefits from legal certainty when potentially disruptive challenges to decisions are prohibited after a set period of time (the disruption being taken as counter to the wider public interest in â€?good adminisÂtration’[38]).
There is thus a corresponding presumption of legality in respect of decisions that are taken but not challenged timeously in the sense that the decisions are thereafter deemed to be valid.[39][1.08] Judicial statements about the value of protecting the interests of individuals fasten, in contrast, upon the need to constrain actual and potential abuses of power. This concern has underscored the emergence of new â€?root concepts’[40] of the common law that have their origins in, among other things, the age-old concept of â€?fairness’. Fairness is an open-textured, malleable concept and this allows it be used creatively by the courts as they develop and reinvent the grounds for judicial review.[41] Perhaps the best example of such use of the concept in recent years has been in respect of substanÂtive legitimate expectations.[42] The doctrine of substantive legitimate expectation entails, at its most basic, that a public authority may not resile from a clear and unambiguous representation made to an individual where the individual has, on the basis of the representation, developed a reasonable expectation that they will receive or continue to receive some substantive benefit.[43] While the applicant’s expectation must be set against considerations of the wider public interest in allowing the authority to depart from its policies or representations, the key question for the courts is whether fairness requires that the individual’s expectation be upheld.[44] This, in turn, is a question that potentially involves the courts in â€?closer look’ review of a kind that some regard as constitutionally problematic,[45] and recent case law has suggested that the doctrine should be â€?narrowly construed’.[46] Nevertheless, the courts still accept that substantive legitimate expectation is a central doctrine in public law and that it can act as an important counterweight to the â€?abuse of power’ by decision-makers.[47]
[1.09] Concern for the protection of the individual may then be at its most proÂnounced when fundamental rights are affected by a decision or a failure to act.
Fundamental rights standards are those that are found in the common law, the ECHR (as read with the Human Rights Act 1998), and EU law, although unincorporated international human rights standards may also be of relevance where courts take them into account as â€?soft law’ measures or as correlates of the common law.[48] The key point in respect of such rights is that their protection can perforce require courts to look more closely at the justification for decisions and, where appropriate, to modify proceÂdure and remedies.[49] While the courts will again seek to balance the individual’s rights against wider conceptions of the public interest when qualified rights are in issue, there remain some rights—such as the prohibition of torture—that are absolute and invioÂlable.[50] When those rights are in issue, it has been said that judicial review should provide for the most â€?anxious scrutiny’ of decision-making processes and outcomes.[51] Considerations of the constitutional limits to the judicial role may therefore be different here than in other circumstances.[52][1.10] Emphases on the interests of the decision-maker or the individual should not, however, be regarded as mutually exclusive. Both reference points arguably reduce to the proposition that the public at large benefits from the highest standards of decisionÂmaking, and they can to that extent be regarded as more complementary in form than competing. The significance in the different constitutional justifications for judicial review therefore lies not in their capacity to offer an â€?either/or’ rationalisation for every judicial decision (they cannot do so), but rather in the fact that they posit more or less judicial intervention in the decision-making process as the means to improve that process. An emphasis on courts safeguarding the interests of the decision-maker through the strict observation of procedural requirements would, for example, suggest that the courts should thereafter remain at the outer reaches of the substantive decision-making process and not become involved in assessing the merits of discretionary choices. But where courts focus on the interests of individuals, this would suggest less rigidity in respect of procedural requirements[53] and—as can be seen most obviously in the human rights context—closer look review.[54] The central—and overall—challenge for the courts is thus to decide how best to strike the balance between more or less intervention on a case-by-case basis.